Duluth Terminal Railway Co. v. City of Duluth
| Decision Date | 17 February 1911 |
| Docket Number | 16,793 - (222) |
| Parties | DULUTH TERMINAL RAILWAY COMPANY v. CITY OF DULUTH |
| Court | Minnesota Supreme Court |
The Duluth Terminal Railway Company, a common user railway having tracks but no trains, petitioned the district court for St Louis county to condemn a right of way for the construction of an elevated double track extension of its existing elevated railway at a general height of about twenty-two feet above the surface of the ground, and at all places of sufficient height to permit the passage thereunder of public travel, vehicles, foot passengers and street railroads, to an abutment of the bridge of the Duluth & Superior Bridge Company, called the Interstate bridge. The Duluth & Superior Bridge Company filed an answer alleging that, under the act of congress authorizing the construction of the bridge (28 St. c. 64) it was the only person or corporation authorized to construct and operate approaches to its bridge, and as it was able and willing to construct such approach for railway purposes in strict accordance with the terms of the act, it prayed for the dismissal of the petition. The Duluth-Thunder Bay Railway Company filed no answer or objections to this petition.
At the hearing before Dibell, J., the city of Duluth objected to the proceeding, and the appointment of commissioners, upon the ground that the property described in the petition constituted a part of the public highways, streets, avenues and alleys of the city, and upon the ground that it is a condition precedent to the right of petitioner to use such property that it first obtain from the city a franchise, and compensate the city for such franchise; that petitioner has not obtained such franchise, has not applied to obtain such franchise, and has no right whatsoever to condemn property in the streets or highways of the city; that the control of the location of railway tracks on the streets within the city is especially vested in the common council of the city, that the common council has not given petitioner permission to locate its tracks within the city, and on the further ground that the common council has granted the rights to other corporations to use portions of the property sought to be condemned by the petitioner, and has prescribed terms and conditions upon which such property in the streets and highways of the city may be used by public service corporations; that petitioner has not in any way complied or offered to comply with such terms and conditions, and upon the further ground that this is an attempt in condemnation proceedings to litigate the validity of a right, which petitioner claims, to use certain streets of the city, and in this proceeding the court has no jurisdiction to determine such controversy.
When the petitioner rested, the city moved to dismiss the petition upon the grounds: (1) That this was an attempt to litigate the validity of a certain ordinance of April 30, 1888, and the rights in the streets claimed thereunder by the petitioner as to all of the property involved in the proceeding, except Arthur avenue extended; (2) that as to Arthur avenue extended no consent of the city to the use of the street for the construction of railroad tracks was shown (3) that as to Arthur avenue extended the evidence showed petitioner had knowledge of the negotiations between the city and the Duluth-Thunder Bay Railway Company which resulted in a franchise from the city to the company; (4) that the petitioner had failed to show the necessity. The motion to dismiss was denied. The court made findings, covering the facts stated in the first four paragraphs of the opinion, and as a conclusion of law dismissed the proceeding. From that order, petitioner appealed. Affirmed.
Priority of franchise over condemnation proceedings -- evidence.
The city of Duluth, by ordinance, granted to the Duluth-Thunder Bay Railway Company a franchise on specified terms and conditions to construct a railway along Arthur avenue extended. Said company accepted the ordinance and is constructing the railway. Prior to the passage of this ordinance, but subsequent to its introduction in the city council, the petitioner herein instituted condemnation proceedings to acquire the right to construct a railway along the same portion of the street. The two rights being inconsistent, the franchise granted by the ordinance is the prior and superior right, and the city of Duluth had such an interest in the contract ordinance that it could introduce such grant in evidence, and base thereon an objection to the prosecution of the condemnation proceedings instituted by the petitioner; the Duluth-Thunder Bay Railway Company not objecting to such proceedings.
Right of way upon city or village street -- amendment by act of 1893.
Chapter 74, Laws 1893, an amendment to section 1 of title 1 of chapter 34, G.S. 1866, provided that no corporation formed under this title shall have any right to construct, maintain, or operate upon or within any street of any city or village a railway of any kind, without first obtaining a franchise therefor from such city or village. This provision was in direct partial conflict with the provision of section 29 of said chapter, authorizing railway companies to acquire, by condemnation, the right to occupy any road, street, or alley for the necessary location of its railroad. To the extent of such conflict, section 29 was amended, and the right therein given a railway company to appropriate, through condemnation proceedings, such portion of highways as may be necessary for the construction of its road, without first obtaining a franchise, was limited to highways outside of cities and villages.
Effect of act.
The amendment of 1893 applies to action taken thereafter, but with reference to such action the section is construed as if originally enacted in its amended form. It therefore limits the power conferred on all corporations organized thereunder, whether organized prior to or after 1893.
Obligation of contract not impaired by act.
The placing of such limitation on the power of eminent domain, by an amendment to the general law conferring the power, did not impair the obligation of a contract or destroy any property right.
The provisions of the statutes referred to were carried forward into the Revision of 1905 under a different arrangement of and subdivision into sections. But by such rearrangement no alteration was apparently intended, and none was therefore made in the existing law.
Right of way upon city or village street -- condemnation.
A railway company, organized under title 1, c. 34, G.S. 1878, whether organized before or since 1893, is not authorized by the laws of this state, special reference being had to sections 2841 and 2916, R.L. 1905, to acquire by condemnation proceedings the public easement in any portion of a street within a city or village to construct, maintain, or operate a railway of any kind along such street. A franchise must first be obtained from the city or village before such railway company can acquire such right to construct, maintain, or operate a railway along a street therein.
J. A. Murphy, and Baldwin, Baldwin & Dancer, for appellant.
Bert Fesler, for respondent city.
This is a condemnation proceeding instituted by the Duluth Terminal Railway Company. The Duluth-Thunder Bay Railway Company condemned certain lands in the city of Duluth, and laid out a proposed railway line over such lands and along Arthur avenue extended, a street in the city of Duluth, connecting with the Interstate bridge. Later an ordinance was introduced in the city council the said Duluth-Thunder Bay Railway Company, upon certain specified terms and conditions, the right and franchise to erect and maintain a single or double track railway upon a trestle from said Interstate bridge, along said Arthur avenue extended, for a distance of some six hundred feet, and thence along a designated route. This ordinance was in due course thereafter passed and approved January 13, 1909. The Duluth-Thunder Bay Railway Company duly accepted the franchise thereby granted, and agreed to perform all acts and things by the terms of the ordinance required of it, and thereupon commenced constructing the trestle provided for therein.
After this ordinance was introduced, and shortly before its passage, the Duluth Terminal Railway Company instituted these condemnation proceedings, and thereby seeks to acquire, among other lands, for use for the construction of an extension of its line of railway, the strip of land in Arthur avenue extended, over which, by the ordinance referred to, the Duluth-Thunder Bay Railway Company was granted the right to construct and maintain a railway line. The Duluth Terminal Railway Company was organized in 1887 under title 1, c. 34, G. S. 1878. In 1888 the city of Duluth granted it a franchise to construct railway tracks on certain named streets for operating a line of railway and for furnishing trackage connections to other railroads. Beginning about two years thereafter it constructed several miles of terminal or connecting tracks, and has since maintained them, furnishing thereby trackage facilities for such other railway companies as desire to use the same. This proposed extension along Arthur avenue is desired to connect its present tracks with the tracks on the Interstate bridge.
Among the terms contained in the ordinance granting the franchise to the Duluth-Thunder Bay Railway Company to construct and maintain tracks over Arthur avenue extended, connecting with the Interstate bridge, was the requirement that all other railway companies should be permitted to use such tracks to their capacity, upon conditions substantially...
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